This
is an appeal against the whole judgment of the High Court of Zimbabwe
dated 20 May 2015.The
order sought to be impugned reads as follows:“IT
IS DECLARED THAT,1.
1st,
2nd,
3rd
and 4th
Respondents are no longer members of Applicant and have lost all
rights to fellowship under applicant or to make use of any of its
properties or amenities ...
This
is an appeal against the whole judgment of the High Court of Zimbabwe
dated 20 May 2015.
The
order sought to be impugned reads as follows:
“IT
IS DECLARED THAT,
1.
1st,
2nd,
3rd
and 4th
Respondents are no longer members of Applicant and have lost all
rights to fellowship under applicant or to make use of any of its
properties or amenities as well as its name.
2.
1st,
2nd,
3rdand
4th respondents shall immediately stop and shall at all times desist
from making use of applicant's name or any such name which may
reasonably be confused with applicant's name and which may give the
impression that they have any association with applicant.
3.
1st,
2nd,
3rd
and 4th
respondents shall immediately relinquish possession and use of all of
applicant's properties both movable and immovable whether held by
them directly or by those claiming the right of any use of occupation
through them and which are set out in paragraph “3.1” below and
shall concede such use and possession to applicant.
1.
LAND AND BUILDINGS
1.
Bulawayo: church at Stand 61000, Size Road, and adjacent Stands for
youth and women, Western Commonage No.6 Pelandaba;
2.
Stand 36E, 37E, 38E,39E,40E, 54E, 55E Bekezela Street, Pelandaba;
3.
House at No.16 Amantje Road, Four Winds, Bulawayo;
4.
Greengables Farm, the remaining extent of subsdivision B of Dunstaal,
Khami;
5.
Plot 11 and 12, Shamrock Road, Gweru;
6.
Lower Gweru at Gwabada Farm and Ekukhanyeni Weaving Centre;
7.
Kwekwe: Stand No.383 Mbizo Township Church and residence, Amaveni
Township
Church;
8.
Kadoma: Stand No.4 Bwanali Street, Rimuka Township Church
and Mission residence;
9.
Chegutu: Stand 2134 Heroes Township Church and Mission residence at
550 Pfupajena Township;
10.
Masvingo Stand; 14 Mucheke Township, Masvingo;
11.
Mutare: Stand No.7 Machekaire Street, Dangamvura Township, Mutare;
12.
Buhera:
Murambinda Township Church Stand;
13.
Nyanga: Church at Bonde Kraal;
14.
Mount Selinda: Chako Township Church Stand;
15.
Chinhoyi: Stand 1159 Hunyani Township Church and residence;
16.
Mahororo Business Centre Church, Hurungwe;
17.
Beitbridge: Stand 2384 Dulibadzimu and residence at No 9;
18.
Victoria Falls: Stand 2647 Victoria Falls;
19.
Kariba: Stand 1727 Nyamhunga Township;
20.
Chiredzi: 51 Makaza, Triangle, No.6 Nzimbe Township, Triangle;
21.
Mwenezi: Sarahuru Township Church;
22.
Mutoko: Mutoko Business Centre Church Stand;
23.
Pilgrims' Progress Restaurant,
Kadoma;
24.
Pilgrims' Progress Restaurant,
Gweru;
25.
Bindura: 19/34 Musvosve Street Stand at Chipadze Township and Trojan
Mine;
26.
All motor vehicles and church assets under their control;
27.
Chipinda Church Stand; and
28.
Hwange: No.2 Glencoe Road, Railton, Hwange.
4.
1st,
2nd,
3rd
and 4thRespondents
are to bear the costs of this application.”
The
background to this matter is clearly set out in the judgment of the
court a
quo
and may be summarized as follows:
The
Apostolic Faith Mission of Portland, Oregon, is a church corporation
of the State of Oregon, USA; which church was established in 1906
with its headquarters in Portland, Oregon, and is hereinafter
referred to as the “mother or parent church”. It is headed by a
Superintendent General. One of the mother/parent church's premier
goals is to disseminate biblical truth and evangelise the world. In
advancing this goal, the Apostolic Faith Mission of Portland Oregon
(Southern African Headquarters) was established in 1955 (hereinafter
referred to as the “local church”).
The
Apostolic Faith Mission of Portland Oregon (Southern African
Headquarters) (the “local church”) is the respondent in
casu.
The
mother church has other branches in a plethora of Southern Africa
countries, inter
alia,
South Africa, Malawi and Angola. The local church is governed by a
Constitution like any of the other branches of the mother church in
Southern Africa. The first Constitution of the respondent was
promulgated in 1968 and then amended in 1985 and 1996. In terms of
Article 1 of the respondent's amended Constitution, the respondent
was established as a branch of the mother/parent church. The
appellants sought to further amend the Constitution in 2012 which
purported amendment, however, was not endorsed by the mother church.
The
first appellant was appointed Overseer of the respondent in 1985. It
was during the stewardship of the first appellant that an issue arose
concerning the existence of two choirs in the respondent's church.
The
pith of the dispute related to whether there was need for the choir
to wear a uniform and dress in a particular manner.
The
mother church was informed of the dispute and it directed that both
choirs be disbanded. The first appellant did not act in accordance
with this direction from the mother church. Rather, the first
appellant wrote to the mother church indicating that he would
consider withdrawing from the Board and from being an Overseer if the
issue of uniforms was not dealt with to his satisfaction.
The
Director
responsible for Africa, one Reverend Baltzell, visited the respondent
with the intention of retiring the first appellant and appointing a
replacement. Alive to this fact, the first appellant instituted legal
action. Subsequently, Darrel D. Lee, the Superintendent General,
wrote to the first appellant communicating his removal from the
position of Southern Africa Overseer with effect from 21 April 2005,
leaving him as an ordinary member of the church.
Aggrieved
by his removal, the first appellant instituted legal action which saw
him obtaining a provisional order in terms of which he would remain
Overseer of the respondent. This provisional order was, however,
subsequently discharged. The first appellant appealed against this
judgment. The appeal, however, lapsed and was deemed dismissed. On 7
February 2008, following an application made by the first appellant,
the respondent's removal was invalidated, unopposed, under case
HC/1170/05 and the subsequent application for rescission was
dismissed.
The
application a
quo
was, however, not premised on the previous removal of the first
appellant. The material events that led to the appealed judgment are
set out hereunder, as outlined a
quo:
“In
November 2011, the Head of the parent church visited the country and
the (first appellant) barred him from accessing the church branches
and buildings for conducting services. This matter spilled into the
courts again with the parties subsequently agreeing to resolve their
differences outside the court. In the same month, the first
(appellant) issued summons for the eviction of pastors he did not
agree with from church premises. He appointed new pastors and
replaced those he perceived to be siding with the parent church. This
development culminated in further tensions in the church. On 25
January 2012, the first (appellant) was suspended from membership of
the church by the parent church. The reason for this was that he had
breached the cannons of the church and violated spiritual doctrines
by continuing to litigate against the faithful and that he had failed
to submit to the authority of the church in breach of the church's
Constitution. Further, that his conduct had led to the creation of
disharmony within the church and that he had appropriated the
church's assets to his own use. The other complaint was that he was
effecting amendments to the Constitution without authority.”
The
letter of 25 January 2012 suspended the first appellant “immediately
from all activities associated with the church” and stated further
that “during the suspension and pending the finalization of
investigations and any subsequent disciplinary hearing that might be
conducted against you, you shall not set your feet (sic)
at any of the church's premises. You shall also not conduct any
church service. You shall also be expected not to interfere with
church members wherever located in Southern Africa..,.”
Against
these charges, the first appellant instructed his legal practitioners
to write to the Head of the parent church. The contents of this
letter, dated 3 February 2012, read as follows:
“Dear
Sir
RE
APOSTOLIC FAITH MISSION OF PORTLAND AND OREGON UNITED STATES OF
AMERICA VS REVEREND RICHARD SIBANDA AND APOSTOLIC FAITH MISSION OF
PORTLAND OREGON
(SOUTHERN AFRICAN HEADQUARTERS) AND THE BOARD OF TRUSTEES –
CONSTITUTIONAL AMENDMENT
We
refer to the above matter and advise as you may well know that we are
lawyers for the Apostolic Faith Mission of Portland Oregon (Southern
African Headquarters) Inc. and the Board of Trustees of same, and, of
course, Reverend Sibanda, the Overseer of the Southern African
Headquarters;
1.
The Southern African Headquarters is a legal person governed by its
own Constitution and we advise that the Constitution was formed by
the Board of Directors of Southern Africa duly convened and called
for that purpose.
2.
The same Constitution is subject to amendment by the same Board of
Directors duly convened for that particular purpose.
3.
The historical relationship between Southern Africa and America was
born out of historical issues of the refusal by the Colonial
Government to accord indigenous people the right to preach the Gospel
without external white missionaries. For the record, America and
Southern Africa have a spiritual relationship; a look at the previous
Constitutions
and your reference to the history of the church in Southern Africa
will vindicate this position.
4.
In our view, a look at the amendments is not only reasonable but
logical and was inevitable and on p8 are the proposed trustees chosen
by the people of Southern Africa. The choice is yours, to either
understand the amendments and try to build on a great relationship
with Southern Africa under an affiliate status or choose to listen to
people who appear to be feeding you with false information. For your
information, the whole Board of Directors and the Board of Elders and
the Brothers and Sisters in the faith in the greater Southern Africa
are prepared to proceed with the amendments of the Constitution.
5.
For the record, our clients collectively have decided that they will
not accept the leadership from America. The Board of Directors,
Elders and Church members have enough sense and intelligence to
choose their own leadership. Finally, the same God you serve is the
same God they serve and He will give them guidance on succession
issues.
May
we have your response, if any, within seven days?”
The
episodes that followed after this letter are that the first appellant
was called to a disciplinary hearing to respond to the charges
preferred against him. The charges were, inter
alia,
that the first appellant had violated Articles VI and VII of the
respondent's Constitution by deliberately refusing to submit to the
authority of the parent/mother church and that the first appellant
had violated the Constitution as read with doctrinal rules of the
Apostolic Faith Church of Portland, Oregon (Southern Africa
Headquarters) in that in or around December 2011, the first appellant
had elected to settle his personal disputes with church brethren in
the High Court of Zimbabwe rather than as dictated by the Bible.
The
first appellant did not attend the disciplinary hearing to determine
charges laid against him set for 22 March 2012. The hearing
nevertheless went ahead and it was resolved that the first
appellant's suspension be “confirmed”. Rev. Onias Z. Gumbo was
then appointed as Overseer in the place of the first appellant.
Undeterred
by the suspension, the first appellant maintains that he is still the
Overseer of the respondent.
On
22 March 2014, the appellants issued summons against the
superintendent of the parent church challenging the first appellant's
suspension and seeking nullification of Reverend Gumbo's
appointment and an order interdicting him from interfering with the
church operations. The parent church counter-claimed seeking a
declaration of the lawfulness of the suspension and the interdiction
of the appellants from acting as Overseer and Board of Directors of
the local church. This action does not seem to have been pursued to
finality for reasons that are not clear from the record. Instead, the
respondent filed an application for a declaratory order in the court
a
quo
essentially
seeking the same relief as in the counterclaim. The terms of the
order prayed for, which order was granted by the court a
quo,
have already been quoted above.
Aggrieved
by that order, the appellants noted this appeal on the following
grounds of appeal:
“1.
The High Court erred in finding that the respondent, being a
universitas
with
power to sue and be sued in its own name, could not secede from the
Apostolic Faith Mission of Portland Oregon.
2.
The High Court further erred in finding that the respondent had an
interest in suing its Overseer and its Board of Trustees, the
Appellants, when the letter of the 3rd
of February 2012 was written on behalf of the respondent, its
leadership and its members.
3.
The High Court further misdirected itself in finding that the letter
of the 3rd
of February 2012 amounted to a resignation by the (appellants) from
the (respondent) or a denunciation of the doctrine of the church.
4.
The High Court misdirected itself in finding that the (appellants)
had shown conduct as to amount to sensation (sic)
(secession?) when there was no evidence to that effect.
5.
The High Court misdirected itself in finding, as it did, that the
(appellants) had adopted a new Constitution for the applicant when in
fact they had not proceeded with the proposed amendments.
6.
The High Court further erred in failing to find that the (respondent)
church, through the Overseer, the 1st
(appellant), had the authority to appoint its own leadership, that is
the Board of Trustees, and, therefore, the communication that the
applicant's leadership would be appointed locally could not amount
to denunciation of the American church.”
At
the hearing of this matter, additional grounds of appeal were moved
and granted through an amendment as follows:
1.
The learned judge in the court a
quo
erred in not finding that the respondent did not have the requisite
capacity to bring the action in this matter and/or that it required
the support of the church in Oregon, USA.
2.
The learned judge in the court a
quo
erred in not finding that the application was, in any event, fatally
defective as the deponent to the founding papers was barred from
representing the respondent.
3.
The learned judge of the court a
quo
erred in finding that the first appellant ceased to be District
Superintendent and ought to have found, therefore, that the
application was a nullity.
The
appellants then prayed for the setting aside of the judgment of the
High Court and its substitution with an order dismissing the
declaratory application with costs….,.
This
Court, therefore, is seized with an appeal seeking to overturn a
declaratory order granted a
quo.
From a close reading of the grounds of appeal, two questions call for
determination and these are:
1.
Whether the respondent had the requisite locus
standi
to sue?
2.
Whether the appellants had ceased to be members of the
respondent?...,.
Whether
the appellants had ceased to be members of the respondent?
The
appellants contend that the letter of 3 February 2012, written by
their legal practitioners to the mother church, did not communicate
their resignation from the mother church. Against this contention is
a specific finding made by the court a
quo
that
the first appellant had resigned from the respondent's church. The
contents of the letter have been quoted above.
It
must be noted that the letter was written on 3 February 2012, days
after the suspension of the first appellant from the respondent's
church. The first appellant had been suspended from the respondent's
church on 25 January 2012. The terms of the suspension were, inter
alia,
that the first appellant was suspended immediately from all
activities associated with the respondent church. It therefore
follows that any activity that the first appellant purportedly did on
behalf of the church, after his suspension, was null and void. As
long as the suspension was still in force, any purported act by the
first appellant, on behalf of the respondent, was of no effect.
The
letter in question was written by the law firm, Cheda and Partners,
on the instructions of the first appellant who had been suspended
from the respondent church. The author of the letter, at law, is
undoubtedly the first appellant. It is worth observing that the legal
practitioners who wrote the letter in question state that they are
lawyers for the respondent, the first appellant and the Board of
Trustees of the respondent. In this letter, the first appellant
sought to act on behalf of the respondent as noted from the cited
parties. The contents of the letter therefore, prima
facie,
reflects that the first appellant was representing the respondent.
This could not be possible as the first appellant had been suspended
by the respondent.
Be
that as it may, the pertinent question that this Court is seized with
is whether the letter communicates a resignation by the appellants
from the respondent' church. In the event that this Court is to
find that it communicates a resignation, does it then follow that the
appellants are no longer members of the respondent despite the
absence of dismissal of the appellants by the respondent?
It
is also worth noting the letter in question contains very strong
doctrinal issues. Is it a form of schism, a declaration of
independence from the parent church?
In
the case of Independent
African Church v Maheya
1998 (1) ZLR 552 (H), DEVITTIE J reflects on the historical schisms
generated by the passion of church conflicts, thus:
“Even
at birth, the Christian Church experienced a great schism…,. It
came about when a convert of the early church, Paul, adapted
Christianity to meet the needs of all mankind and freed it from the
local and national parameters…,.
Another
schism which took place in early times was the Reformation. The
growth of national consciousness in medieval times, in part,
motivated the great conflict the Catholic Church and Protestantism.
The spirit of nationalism could not accommodate the claims of the
papacy, a non-national authority, to moral dictatorship. This schism
has raged for centuries and continues to this day..,.
In
like vein, the spirit of freedom radiated by the advent of democratic
Government in Zimbabwe in 1980 precipitated a rapid growth of
independent churches in Zimbabwe. I use the word 'independent' to
denote churches with no association or affiliation to the established
churches.”...,.
However,
before the ink was dry on the above judgment, the schism had spread
to local branches of established churches and the relationship
between the parent churches and their local branches is currently
undergoing serious strains as the present case clearly demonstrates.
The relationship between the metropole-based parent churches and
their peripheral local branches, that was forged under brutal
colonial conquest and tenuously survived the bitter struggles of
independence, must now respond to the democratic dispensation demands
and not wish away the tensions as mere ruses of charlatans and greedy
leaders of the poor peripheral congregations.